United States v. Santiago

• Decision Date: 12 September 2014
• Docket Number: No. 13–1146.,13–1146.
• Citation: 769 F.3d 1
• Parties: UNITED STATES, Appellee, v. Juan José SANTIAGO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

769 F.3d 1

UNITED STATES, Appellee

v.Juan José SANTIAGO, Defendant, Appellant.

No. 13–1146.

United States Court of Appeals, First Circuit.

Sept. 12, 2014.

Liza L. Rosado–Rodríguez, Research and Writing Specialist, with whom Héctor E. Guzmán–Silva, Federal Public Defender, and Héctor L. Ramos Vega, Assistant Federal Public Defender, were on brief, for appellant.

Juan Carlos Reyes–Ramos, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division were on brief, for appellee.

Before TORRUELLA, BALDOCK,^* and THOMPSON, Circuit Judges.

Opinion

THOMPSON, Circuit Judge.

Defendant Juan José Santiago was sentenced to twelve months in prison and ten years' supervised release after pleading guilty to one count of failing to register as a sex offender. The terms of Santiago's supervised release included a series of special sex offender conditions, which he now seeks to vacate. There is merit to some, but not all, of Santiago's claims of error. In short, while a waiver of appeal serves to defeat the bulk of Santiago's challenges, we vacate one of the conditions of supervised release, which was imposed in Santiago's absence.

I. The Start of Things

Santiago's story, inasmuch as it is relevant to this appeal, begins over a decade ago in Florida. On March 19, 2002, a Mulberry, Florida police detective responded to a hospital emergency room for the reported rape of a seven-year-old girl. The girl's mother, who was Santiago's girlfriend at the time, told the detective that the girl had said that “her daddy,” referring to Santiago, “had touched her privates.”¹ Two days later, the girl was interviewed by the Florida Department of Health's Child Protection Team. She told them that “her daddy would take her and his pants off, would get on top of her and move around like in the movies she had seen with him” and that “he touched and licked her privates.” Santiago's girlfriend confirmed that there were two pornographic videos in the couple's night stand and consented to a search, which turned up both videos. Santiago was arrested.

Santiago was charged, under Florida law, with one count of sexual battery on a person less than twelve years of age, and one count of lewd molestation. The sexual battery charge was later reduced to child abuse. Santiago pleaded nolo contendere to both the lewd molestation and the child abuse charge. On July 19, 2002, Santiago was sentenced to five years of probation for the child abuse charge, and ten years of probation for the lewd molestation charge, to be served concurrently. Pursuant to the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 16913, Santiago was required to register as a sex offender, and keep his registration current, in all jurisdictions where he resided.

Over the next couple of years, Santiago repeatedly had trouble abiding by the terms of his probation. First, in July 2003, Santiago missed his court ordered curfew; an arrest warrant was issued, but later withdrawn. A year or so later, in September 2004, Santiago moved from his approved residence to another residence without prior permission from his probation officer, and failed to pay his monthly cost of supervision. Santiago admitted to the violations, and served forty-five days in county jail. Upon release, his probation was restored.

The stint in county jail did little to improve Santiago's compliance. Shortly after his release, in November 2004, an arrest warrant issued because Santiago had failed to register as a sex offender, neglected to report to the probation office, and had not paid court costs. A few weeks later, Santiago's probation officer reported additional violations: Santiago had once again moved from his approved residence without prior approval, had failed to successfully complete his sex offender treatment program, and had failed to pay court costs and restitution.

Having exhausted the system's goodwill, Santiago had his probation revoked on August 11, 2005. He was sentenced to just over seven years in Florida state prison for the child abuse charge, and five years for the lewd molestation charge, to be served concurrently. Santiago was released from prison on November 21, 2010. At some point following his release, Santiago moved from Florida to Puerto Rico.

II. The Instant Offense

Once in Puerto Rico, Santiago again failed to register as a sex offender. Law enforcement caught up with him and, on April 3, 2012, a federal grand jury indicted Santiago on one count of violating 18 U.S.C. § 2250 for traveling through interstate commerce and knowingly failing to register with Puerto Rico authorities as required by SORNA.

Santiago decided to work with the government and he entered into a plea agreement. The agreement indicated that the Sentencing Guidelines yielded a recommended sentence of twelve to eighteen months, and that the government, in exchange for a guilty plea, would be satisfied with the bottom end of that range. The agreement also noted that the penalty for the offense charged included a term of supervised release that could range from five years to life. Pertinent to our purposes, the plea agreement contained a waiver of appeal provision, which provided that should the court accept the agreement and sentence Santiago according to its terms, Santiago would be “waiv[ing] and permanently surrender[ing] his right to appeal the judgment and sentence in this case.”

At the change of plea hearing, the magistrate judge explained to Santiago the implications of the plea agreement, including the fact that Santiago would be giving up his right to appeal the judgment and sentence. She also explained the penalties he faced, noting the applicable term of supervised release and the fact that Santiago's release would be subject to some conditions. Santiago confirmed that he understood, and his attorney vouched for Santiago's competence to enter into the plea agreement. The court accepted Santiago's guilty plea; only sentencing considerations remained.

On December 6, 2012, the probation office issued its presentence investigation report (PSR). The PSR recommended (in addition to less relevant things) that a variety of special sex offender conditions be imposed, which generally speaking placed limitations on Santiago's contact with minors and required sex offender treatment with compliance monitoring.

Santiago's sentencing hearing took place on January 4, 2013. After some skirmishing not relevant to this appeal, the district court judge sentenced Santiago to twelve months in prison followed by a ten-year term of supervised release. In accord with the PSR's recommendation, the judge, at the hearing, imposed a number of special sex offender conditions as terms of Santiago's supervised release. The court inflicted the conditions over the objection of Santiago's attorney, who argued that the record was bereft of any justification for such conditions.² The judge disagreed, finding the fact that Santiago had pleaded nolo contendere to lewd molestation of his then-girlfriend's daughter in 2002 sufficient to warrant the special conditions.

The court issued its written judgment the same day as the sentencing hearing. In addition to the special sex offender conditions announced at the hearing, the judgment contained one additional condition, numbered thirteen in the judgment, which provided that Santiago could not use or possess sexually explicit material or frequent any establishments providing pornography or sexual services.

III. This Appeal

Santiago comes to us with a circumscribed advancement. He does not challenge his sentence, his term of supervised release, or the general conditions of that release. Rather he solely takes issue with some of the special sex offender conditions imposed by the district court.

First, he claims that a handful of the conditions were unwarranted because they were not reasonably related to his failure to register (which is not a sex offense) or any of the overarching goals of supervised release. The disputed conditions can be summarized as follows. Santiago must: (1) have no unapproved contact via mail, phone, or electronically with minors; (2) undergo sex offender evaluation and treatment; (3) avoid entering, loitering, or working near any areas frequented by minors without probation's approval; (4) not live near any area frequented by minors; and finally (5) refrain from living with minors unless probation gives the okay.³ Next, Santiago argues that condition thirteen of the judgment (recall this was the condition relating to sexually explicit materials and establishments), in addition to not being justified, was in violation of his right to be present because it was not announced at his sentencing hearing.

The government does not think we need to reach the merits of either claim. It retorts that pursuant to the waiver of appeal provision in his plea agreement, Santiago gave up his right to appeal his sentence, including the special terms of his supervised release.

The multiple special sex offender conditions that Santiago claims were baseless given the circumstances, and the unannounced condition thirteen, suggest distinctive concerns. And ultimately they require different results. As such, we take them independently.

IV. The Supposed Unwarranted Conditions

With respect to the conditions Santiago claims were groundless, our inquiry, as the government suggests, starts and ends with the waiver of appeal contained in Santiago's plea agreement. Santiago does not dispute that because he was sentenced in accordance with the plea agreement he is precluded by the waiver from appealing his term of imprisonment. Rather, he attempts to draw a distinction between the twelve-month prison term and his supervised release conditions. Because, he says, the plea agreement was silent as to which conditions of supervision were to be imposed, and it did not make any recommendation one way or the other, the...